Last week, we presented an overview of the conflicts, constitutional crises and crises of legitimacy facing key institutions of democracy in Poland today.
In this second part, we list the specific areas where there are serious conflicts in democratic functioning. Most, but not all, can be described as threats to checks and balances on executive and legislative power. Most, but not all, the crises have come to a head under the outgoing ruling coalition.
The Judiciary and the Rule of Law
The most dramatic removal of checks and balances in Poland concerns the judiciary and more broadly the rule of law. The current crisis in this area began with Constitutional Tribunal in 2015, a general election year, and the attempt by the outgoing Civic Platform government under Donald Tusk to rush through the appointments of 5 new judges to the Tribunal. The incoming government was a coalition headed by PIS and the crisis began in the "gap" between the terms.
Besides "standard" power-grab politics, the situation was exacerbated by the procedural gap in the terms of the judges and the requirement that the President swear in judges. (Furthermore, rulings of the Constitutional Tribunal await publication by the government in the Journal of Laws, to come into legal effect.) President Duda (also from PIS) took the side of his party and refused to swear in the 5 judges nominated by PO, instead swearing in the 5 judges nominated by the new government.
The Constitutional Tribunal confirmed that the first three judges nominated by PO had been properly nominated while rejecting the nominations of the latter 2. This decision was later confirmed by the European Court of Human Rights in Strasbourg, in Polish popular terms stating that the three "stand-in-judges" ("dublerzy") nominated by PIS were ruling illegitimately.
Another fault in the balance of power was the use, by both PO and PIS, of regular parliamentary bills to reform the functioning of courts which play a crucial role in the Polish constitution.
A further background element of the rule of law crisis is the complexity of the Polish court system, enabling politicians to confuse the general public about the real issues at stake when power grabs are in process.
As well as the Constitutional Tribunal, which hears constitutional cases only, Poland has a Supreme Court, the highest court of appeal and which has controversially included a Disciplinary Chamber since 2019, and the collective, "overlapping" organ the National Council of the Judiciary (in Polish "KRS / Krajowa Rada Sądownictwa") - also a crucial body serving to preserve balance between powers in the state by nominating judges and reviewing complaints against judges.
Faltering, but ultimately successful attempts by PIS to reform/introduce these latter institutions led to the 2017 crisis with the European Union. The European Commission demanded from Poland, in effect, rolling back on the centralisation of power to the executive, including:
- Removing the discretionary power of the president to prolong the mandate of (selected) Supreme Court judges
- Removing the discretionary powers of the Minister of Justice, also regarding retirement ages of judges
- Restoring the independence of the Constitutional Tribunal.
The Independence of the Media - "the Fourth Estate"
The media has not been the object of a legal attack similar to the judiciary, however its proper functioning as a check on the executive has been undermined.
In January 2016, Jacek Kurski was nominated to Chairman of the Board of Polish Public Television (TVP). Polish law does not protect state media from bias carefully, however the nomination of Kurski - an active politician whose role in key campaigns for PIS and the far-right League of Polish Families could be summarised as "Spin Doctor in Chief" - was a very strong signal that fair and balanced media was not to be expected.
As of 2016, the Head of TVP is nominated by the National Media Council, formed by members selected by the Sejm and the President of Poland - once again, the legislature and the executive powers.
In 2020, the state-controlled company petroleum giant Orlen acquired hundreds of local news outlets through the purchase of Polska Press from its then German owner. Orlen's CEO made no secret of the usefulness of access to 17.4 million readers and users, however presenting this as a business venture for Orlen and not a political move by the government:
In 2023, Reporters Without Borders wrote as follows, summarising the situation in Poland:
"While Poland has a diverse media landscape, public awareness of press freedom remains weak. After turning the public media into instruments of propaganda, the government has multiplied its attempts to change the editorial line of private media and control information on sensitive subjects."
Education, Scientific Research, Museums - and "History Politics/Policy"
Schools, museums and scientific research are not usually listed as checks on executive power, except perhaps - in the context of NGOs and the media - as the "civil society" necessary for healthy democracies. However, it is frequently mentioned by experts that these institutions become crucial for their propaganda role in non-democratic societies.
The attempts by the controversial Minister of Education, Przemysław Czarnek, to control cooperation between NGOs and state schools, was ultimately vetoed by President Duda. However, schools and NGOs commented that the politicisation of education led to "self-censorship" by schools, thereby avoiding activities and cooperation that could raise eye-brows, however innocent or constructive - what Timothy Snyder refers to as "anticipatory obedience".
The Law and Justice Party openly introduced what it called "polityka historyczna", presumably influenced by the German concept of "politics of memory". Other areas of life came in this way to be centralised as "politics" - including the new school subject "History and the Present" and museums (limited to) emphasizing Poland's heroism or status as innocent victims.
The Education Minister also had a run-in with the Polish Center for Holocaust Research on the occasion of press interviews concerning the Center's publication Night Without End. Regardless of the academic merits, Czarnek's message was clear: funding should be removed from research which draws conclusions that are critical of Poland (i.e. contrary to proper "History Politics".)
Centralisation of Power
One of the main purposes checks and balances is to avoid the concentration of power into one pair of hands. The use of "sovereign" made popular by the outgoing ruling party also aims to respect the will of the people. It is paradoxical then, that the greatest concentration of power in Poland has been in the hands of someone who was not elected to his position of supreme power - Jarosław Kaczyński. Formally he is the Head of the Law and Justice Party and for a relatively short period he was Deputy Prime Minister. He did not run as a candidate for Prime Minister or President as polls clearly demonstrated his poor chances. Yet he is universally considered to be the most powerful person in Poland.
Even media which is pro-PIS is open about the dominating role of Kaczyński. For example, Rafał Ziemkiewicz, a right-wing commentator here criticising Law and Justice's election campaign, says that "the campaign was clearly designed to please not the electorate but just one person, I think you can guess who I mean..."
Sources: Radio Poland, timothysnyder.org, youtube.com/superexpress, notesfrompoland.com, Rzeczpospolita, oko.press, holocaustresearch.pl, ucl.ac.uk, ngo.pl
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